Mining for metadata in documents received from opposing counsel is unethical, says a new ethics opinion from the New York County Lawyers' Association. "A lawyer who receives from an adversary electronic documents that appear to contain inadvertently produced metadata is ethically obligated to avoid searching the metadata in those documents," the opinion concludes. The opinion is notable for its disagreement with a 2006 American Bar Association Ethics Committee opinion that reached the opposite conclusion, permitting review of metadata in documents opposing counsel sends electronically. Instead, the NYCLA ethics committee sides with the New York State Bar Association, which found that a lawyer may not ethically use technology to "surreptitiously examine" electronic documents.

This Committee finds that the NYSBA rule is a better interpretation of the Code’s disciplinary rules and ethical considerations and New York precedents than the ABA's opinion on this issue. Thus, this Committee concludes that when a lawyer sends opposing counsel correspondence or other material with metadata, the receiving attorney may not ethically search the metadata in those electronic documents with the intent to find privileged material or if finding privileged material is likely to occur from the search.

The opinion adds two caveats. First, it does not apply to e-discovery, where documents may contain metadata "that by agreement may be viewed by attorneys in the course of litigation." Second, it does not prohibit a lawyer from investigating metadata for purposes other than "to uncover attorney work product or client confidences or secrets."

For example, if a lawyer is facing a pro se litigant and suspects that a lawyer is nonetheless drafting the pleadings for the pro se litigant, the lawyer who searches the properties to see whether a lawyer has drafted the material is not likely to uncover attorney work product or client confidences or secrets and may not be intending to uncover such material because a pro se litigant does not have the attorney work product protection.

The opinion emphasizes that attorneys who are sending electronic documents to their adversaries have the responsibility "to take due care in appropriately scrubbing documents prior to sending them." But when an attorney neglects to scrub a document, opposing counsel may not "take advantage of the sending attorney's mistake and hunt for the metadata."

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Metadata: Read at Your Own Risk

Mining for metadata in documents received from opposing counsel is unethical, says a new ethics opinion from the New York County Lawyers' Association. "A lawyer who receives from an adversary electronic documents that appear to contain inadvertently produced metadata is ethically obligated to avoid searching the metadata in those documents," the opinion concludes. The opinion is notable for its disagreement with a 2006 American Bar Association Ethics Committee opinion that reached the opposite conclusion, permitting review of metadata in documents opposing counsel sends electronically. Instead, the NYCLA ethics committee sides with the New York State Bar Association, which found that a lawyer may not ethically use technology to "surreptitiously examine" electronic documents.

This Committee finds that the NYSBA rule is a better interpretation of the Code’s disciplinary rules and ethical considerations and New York precedents than the ABA's opinion on this issue. Thus, this Committee concludes that when a lawyer sends opposing counsel correspondence or other material with metadata, the receiving attorney may not ethically search the metadata in those electronic documents with the intent to find privileged material or if finding privileged material is likely to occur from the search.

The opinion adds two caveats. First, it does not apply to e-discovery, where documents may contain metadata "that by agreement may be viewed by attorneys in the course of litigation." Second, it does not prohibit a lawyer from investigating metadata for purposes other than "to uncover attorney work product or client confidences or secrets."

For example, if a lawyer is facing a pro se litigant and suspects that a lawyer is nonetheless drafting the pleadings for the pro se litigant, the lawyer who searches the properties to see whether a lawyer has drafted the material is not likely to uncover attorney work product or client confidences or secrets and may not be intending to uncover such material because a pro se litigant does not have the attorney work product protection.

The opinion emphasizes that attorneys who are sending electronic documents to their adversaries have the responsibility "to take due care in appropriately scrubbing documents prior to sending them." But when an attorney neglects to scrub a document, opposing counsel may not "take advantage of the sending attorney's mistake and hunt for the metadata."